Florida Senate - 2023                                    SB 1174
       
       
        
       By Senator Polsky
       
       
       
       
       
       30-00383C-23                                          20231174__
    1                        A bill to be entitled                      
    2         An act relating to the resolution of disputed property
    3         insurance claims; amending s. 627.7015, F.S.;
    4         requiring, rather than authorizing, parties to a
    5         property insurance claims dispute to participate in
    6         mediation; providing that mediation is a condition
    7         precedent to commencing litigation; providing that the
    8         parties may mutually agree to conduct the mediation by
    9         teleconference or by telephone; requiring all insureds
   10         to personally attend the mediation; revising and
   11         specifying duties as to bearing certain costs of
   12         mediation; requiring, rather than authorizing, the
   13         Department of Financial Services to adopt certain
   14         rules; authorizing the department to adopt certain
   15         emergency rules; requiring the policyholder to provide
   16         the insurer with certain documents within a certain
   17         timeframe after mediation is invoked; revising
   18         conditions under which a policyholder has a certain
   19         timeframe to rescind a settlement; revising the
   20         definition of the term “claim”; providing
   21         construction; amending s. 627.7074, F.S.; conforming a
   22         provision to changes made by the act; providing an
   23         appropriation; providing an effective date.
   24          
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Section 627.7015, Florida Statutes, is amended
   28  to read:
   29         627.7015 Mandatory mediation Alternative procedure for
   30  resolution of disputed property insurance claims.—
   31         (1) This section sets forth a nonadversarial alternative
   32  dispute resolution procedure for a mediated claim resolution
   33  conference prompted by the need for effective, fair, and timely
   34  handling of property insurance claims. There is a particular
   35  need for an informal, nonthreatening forum for helping parties
   36  who elect this procedure to resolve their claims disputes
   37  because most homeowner and commercial residential insurance
   38  policies obligate policyholders to participate in a potentially
   39  expensive and time-consuming adversarial appraisal process
   40  before litigation. The procedure set forth in this section is
   41  designed to bring the parties together for a mediated claims
   42  settlement conference without any of the trappings or drawbacks
   43  of an adversarial process. Before resorting to these procedures,
   44  policyholders and insurers are encouraged to resolve claims as
   45  quickly and fairly as possible. This section applies is
   46  available with respect to claims under personal lines and
   47  commercial residential policies before commencing the appraisal
   48  process and is a condition precedent to, or before commencing
   49  litigation. Mediation may be requested only by the policyholder,
   50  as a first-party claimant, a third-party, as an assignee of the
   51  policy benefits, or the insurer. However, an insurer is not
   52  required to participate in any mediation requested by a third
   53  party assignee of the policy benefits. If requested by the
   54  policyholder, Participation by legal counsel is permitted.
   55  Mediation under this section is also required of available to
   56  litigants referred to the department by a county court or
   57  circuit court. This section does not apply to commercial
   58  coverages, to private passenger motor vehicle insurance
   59  coverages, or to disputes relating to liability coverages in
   60  policies of property insurance.
   61         (2) At the time of issuance and renewal of a policy or at
   62  the time a first-party claim within the scope of this section is
   63  filed by the policyholder, the insurer shall notify the
   64  policyholder of its right to participate in the mandatory
   65  mediation program under this section. The department shall
   66  prepare a consumer information pamphlet for distribution to
   67  persons participating in mediation.
   68         (3) If the parties mutually agree, mediation may be
   69  conducted by teleconference or by telephone in lieu of appearing
   70  in person. All named insureds must personally attend the
   71  mediation, regardless of how it is conducted. The costs of
   72  mediation must be reasonable, and the insurer must bear all of
   73  the cost of conducting mediation conferences, except as
   74  otherwise provided in this section. If a named insured or their
   75  representative policyholder fails to appear at the conference,
   76  which prevents the mediation from proceeding, the conference
   77  must be rescheduled upon the policyholder’s payment of the costs
   78  of a rescheduled conference. If the insurer fails to appear at
   79  the conference, the insurer must pay the policyholder’s actual
   80  cash expenses incurred in attending the conference if the
   81  insurer’s failure to attend was not due to a good cause
   82  acceptable to the department. An insurer will be deemed to have
   83  failed to appear if the insurer’s representative lacks authority
   84  to settle the full value of the claim. The insurer shall incur
   85  an additional fee for a rescheduled conference necessitated by
   86  the insurer’s failure to appear at a scheduled conference. The
   87  fees assessed by the administrator must include a charge
   88  necessary to defray the expenses of the department related to
   89  its duties under this section and must be deposited in the
   90  Insurance Regulatory Trust Fund. If a party elects to request an
   91  expert or a representative to attend the mediation, that party
   92  must bear any costs for the attendance of the expert or
   93  representative.
   94         (4) The department shall adopt by rule a property insurance
   95  mediation program to be administered by the department or its
   96  designee. The department shall may also adopt special rules that
   97  which are applicable in cases of an emergency within the state,
   98  including emergency rules as necessary to establish physical
   99  addresses for the mediation program in areas affected by natural
  100  disasters. The rules shall be modeled after practices and
  101  procedures set forth in mediation rules of procedure adopted by
  102  the Supreme Court. The rules shall provide for:
  103         (a) Reasonable requirement for processing and scheduling of
  104  requests for mediation.
  105         (b) Qualifications, denial of application, suspension,
  106  revocation of approval, and other penalties for mediators as
  107  provided in s. 627.745 and the Florida Rules for Certified and
  108  Court-Appointed Mediators.
  109         (c) Provisions governing who may attend mediation
  110  conferences.
  111         (d) Selection of mediators.
  112         (e) Criteria for the conduct of mediation conferences.
  113         (f) Right to legal counsel.
  114         (5)(a) All statements made and documents produced at a
  115  mediation conference shall be deemed to be settlement
  116  negotiations in anticipation of litigation within the scope of
  117  s. 90.408. All parties to the mediation must negotiate in good
  118  faith and must have the authority to immediately settle the
  119  claim. Mediators are deemed to be agents of the department and
  120  shall have the immunity from suit provided in s. 44.107.
  121         (b)Once mediation is invoked, the policyholder must within
  122  10 days provide to the insurer any and all supporting documents
  123  and information that serve as the basis for the claim.
  124         (6)(a) Mediation is nonbinding; however, if a written
  125  settlement is reached and the policyholder is not represented by
  126  an attorney or a public adjuster, the policyholder has 3
  127  business days within which the policyholder may rescind the
  128  settlement unless the policyholder has cashed or deposited any
  129  check or draft disbursed to the policyholder for the disputed
  130  matters as a result of the conference. If a settlement agreement
  131  is reached and is not rescinded, it is binding and acts as a
  132  release of all specific claims that were presented in that
  133  mediation conference.
  134         (b) At the conclusion of the mediation, the mediator shall
  135  provide a written report of the results of mediation, including
  136  any settlement amount, to the insurer, the policyholder, and the
  137  policyholder’s representative if the policyholder is represented
  138  at the mediation.
  139         (7) If the insurer fails to comply with subsection (2) by
  140  failing to notify a policyholder of its right to participate in
  141  the mediation program under this section or if the insurer
  142  requests the mediation, and the mediation results are rejected
  143  by either party, the policyholder is not required to submit to
  144  or participate in any contractual loss appraisal process of the
  145  property loss damage as a precondition to legal action for
  146  breach of contract against the insurer for its failure to pay
  147  the policyholder’s claims covered by the policy.
  148         (8) The department may designate an entity or person to
  149  serve as administrator to carry out any of the provisions of
  150  this section and may take this action by means of a written
  151  contract or agreement.
  152         (9) For purposes of this section, the term “claim” refers
  153  to any dispute between an insurer and a policyholder relating to
  154  a material issue of fact other than a dispute:
  155         (a) With respect to which the insurer has a reasonable
  156  basis to suspect fraud;
  157         (b) When the insurer has determined, based on agreed-upon
  158  facts as to the cause of loss, there is no coverage under the
  159  policy;
  160         (c) With respect to which the insurer has a reasonable
  161  basis to believe that the policyholder has intentionally made a
  162  material misrepresentation of fact which is relevant to the
  163  claim, and the entire request for payment of a loss has been
  164  denied on the basis of the material misrepresentation;
  165         (d) With respect to which the amount in controversy is less
  166  than $500, unless the parties agree to mediate a dispute
  167  involving a lesser amount; or
  168         (e) With respect to a loss that does not comply with s.
  169  627.70132.
  170         (10)Participation in mediation under this section before
  171  the policyholder’s filing of a notice under s. 627.70152 does
  172  not prohibit or waive an insurer’s right to invoke and
  173  participate in mediation under this section in response to the
  174  notice.
  175         Section 2. Subsection (3) of section 627.7074, Florida
  176  Statutes, is amended to read:
  177         627.7074 Alternative procedure for resolution of disputed
  178  sinkhole insurance claims.—
  179         (3) If there is coverage available under the policy and the
  180  claim was submitted within the timeframe provided in s.
  181  627.706(5), following the receipt of the report provided under
  182  s. 627.7073 or the denial of a claim for a sinkhole loss, the
  183  insurer shall notify the policyholder of his or her right to
  184  participate in the neutral evaluation program under this
  185  section. Neutral evaluation supersedes the mediation alternative
  186  dispute resolution process under s. 627.7015 but does not
  187  invalidate the appraisal clause of the insurance policy. The
  188  insurer shall provide to the policyholder the consumer
  189  information pamphlet prepared by the department pursuant to
  190  subsection (1) electronically or by United States mail.
  191         Section 3. For the 2023-2024 fiscal year, the sum of $1
  192  million in recurring funds is appropriated from the Insurance
  193  Regulatory Trust Fund to the Department of Financial Services
  194  for the purpose of administering the amendment made by this act
  195  to s. 627.7015, Florida Statutes.
  196         Section 4. This act shall take effect January 1, 2024.